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1. The accused, Daniel James Barker, is charged with the following two offences: (a) Count 1 (CAN2022/10424) – intentionally inflict grievous bodily harm, contrary to s 19 of the Crimes Act 1900 (ACT); and (b) Count 2 (CAN2022/10428) – threat to kill, contrary to s 30 of the Crimes Act 1900 (ACT).

2. The accused is also charged with an additional transferred charge of common assault, contrary to s 26 of the Crimes Act 1900 (ACT) (CAN2022/10423).

3. These charges arise out of an incident that occurred on 22 October 2022, when the accused assaulted and seriously injured a homeless woman (the victim) and her friend at the Dickson Shopping Centre in Canberra. The accused is also homeless. He has a long history of mental illness.

4. At the arraignment on 4 December 2023, the accused entered ‘special verdict’ pleas of not guilty because of mental impairment to each count on the indictment. The accused’s counsel also confirmed that the accused also pleaded not guilty by reason of mental impairment to the transferred charge. The prosecution agreed to the entering of each verdict and to a finding of not guilty because of mental impairment in respect of the transferred charge.

5. As the accused has entered pleas of not guilty because of mental impairment in respect of each count, and as the prosecution agrees to the entry of those verdicts, I am required to enter special verdicts for each count if I consider those verdicts to be “appropriate”: s 321(2) of the Crimes Act and DPP v Kakar [2023] ACTSC 236 at [132] – [136]. The same process also applies to the transferred charge: s 327 of the Crimes Act and R v Aleer [2016] ACTSC 75.

6. For the reasons outlined below, I am satisfied beyond reasonable doubt of each of the elements of each count on the indictment and the transferred charge. I am further satisfied on the balance of probabilities that the accused was suffering from a mental impairment, namely schizophrenia, at the time of the offending, and that, as a result of his mental impairment, he was unable to reason that his conduct was morally wrong. It follows that I must enter a special verdict of not guilty by reason of mental impairment to each count on the indictment. I must also make a finding of not guilty by reason of mental impairment with respect to the transferred charge.

7. This is not the first time that the accused has been found not guilty by reason of mental impairment of serious offending. In 2014, Refshauge J found the accused not guilty by reason of mental impairment of a number of serious offences including forcible confinement, intentional wounding, various assaults, and a threat to kill: R v Barker [2014] ACTSC 374. It is apparent from the present offending that the accused remains a risk to the community.

8. In these circumstances, both parties agreed that it was appropriate for me to make an order detaining the accused for immediate review by the Australian Capital Territory Civil and Administrative Tribunal (ACAT).

9. I have imposed nominated terms totalling five years. The nominated terms will expire on 21 October 2027. These terms are the “upper limit” on the period of time that the accused may be detained as a result of the commission of these offences. Within this upper limit, the continued detention or release of the accused will be at the discretion of the ACAT, on the basis of the ACAT’s ongoing reviews of the accused.

The evidence

10. The prosecution tendered an agreed tender bundle, containing the following: (a) Transcripts of police interviews with four eyewitnesses to the offending; (b) A witness statement of another eyewitness; (c) A mobile phone video recording which depicts part of the offending, recorded by one of the eyewitnesses; (d) Transcripts of three phone calls to emergency services; (e) CCTV from inside Capital Chemist Dickson, depicting part of the offending; (f) CCTV from the ACT Watchhouse on 22 October 2022, depicting the accused’s behaviour after being taken into custody for the offending; (g) Statements of Constable Jessica Slater, Constable Mark Gale, Constable Daniel Sparks, and Constable Jacob Eiffert; (h) Body-worn camera footage recorded by Constable Slater, depicting conversations with the victim and an eyewitness after the incident, and body-worn camera footage recorded by Constable Gale, depicting the apprehension and arrest of the accused; (i) Medical evidence regarding the victim’s injuries, including photographs of the victim after the incident taken by Constable Jessica Slater on 22 October 2022, an ACT Ambulance Services Patient Summary in relation to the victim dated 22 October 2022, and a medical report of Dr Amanda Barry in relation to the victim dated 25 July 2023; (j) Medical evidence regarding the accused, including a request made by police for an assessment under s 309 of the Crimes Act as to whether emergency detention of the accused was required; Canberra Health Services records from 22 October to 28 October 2022; a psychological report prepared by Dr Douglas Boer, dated 28 September 2023; and a psychiatric report prepared by Dr Joey Le, dated 29 November 2023.

11. The accused consented to the admission of the tender bundle, and did not require any witness for cross-examination.

Background

The alleged offending

12. On the basis of the unchallenged evidence in the tender bundle, I make the following findings of fact.

13. At approximately 1:45pm on 22 October 2022, the accused approached the victim, who was near the Woolworths supermarket and Capital Chemist at the Dickson Shopping Centre in Canberra.

14. Both the victim and the accused are homeless. The victim was cleaning up the area of alleyway where she usually sleeps in Dickson, alongside her friend.

15. The accused asked the victim for a smoke and money for his “tick bill”. The victim told the accused she did not have any money, apparently responding with words to the effect of, “Fuck off you idiot. I'm not your fucking dole cheque person”.

16. At the time of, or shortly after this interaction, the accused was wheeling his bicycle and carrying an elbow-shaped tree branch over his shoulder. The branch was approximately 1-1.5 metres long and 5-10 centimetres in diameter and appeared to be heavy. The accused put his bike down, and then struck the victim in the head with the tree branch.

17. The victim’s friend grabbed the branch from the accused. The accused punched the victim’s friend with a closed fist (the conduct giving rise to the transfer charge of common assault, CAN2022/10423). The accused chased the victim’s friend, and then returned to the victim and began striking the victim from behind with the branch.

18. The accused struck the victim with the branch around two to five times. The victim was cowering on the ground, with her arms protecting her head. The accused hit the victim repeatedly to her torso, arms, and face. One witness to the assault said that it appeared that the accused was aiming for the victim’s head. Another witness gave evidence that the accused “looked like he was trying to kill [the victim]” and that he was “using as much force as he could”. Several members of the public heard the commotion and heard the victim screaming or yelling “ow, ow” and “stop it, stop it”.

19. While attacking the victim, the accused said words to the effect of “Oh, if you're disrespecting me. And you called me names.” The victim responded to the effect of “Well, all because I wouldn’t lend you money?”

20. Two witnesses phoned emergency services during the incident. The accused could be heard in one of those phone calls yelling, “I'll cut your head off you cunt. I'll cut your fucking head off. Fuck (indistinct) cunt”. A witness also heard the accused yelling to the victim words to the effect of, “I'll kill you. I'll break your fucking legs. You disrespect me”. These threats are the conduct comprising Count 2. Another witness heard the accused screaming “I’ll fucking kill you, I’ll cut your legs off”. The accused could also be heard in one of the phone calls to emergency services saying, “you’re a fucking dog”.

21. The victim managed to get up and went inside the Capital Chemist. The accused followed the victim inside the pharmacy and threatened her with the branch. Several people who were inside the pharmacy witnessed the incident, one of whom recorded a video of part of the incident on her mobile phone. The accused struck the victim in the head with the branch, before a member of the public intervened by “[rushing] at the male with a wire trolley”. After a verbal altercation, the accused left the store. The entirety of the accused’s conduct in hitting the victim with the tree branch gives rise to Count 1.

22. After the accused left the pharmacy, he was followed by two members of the public, each of whom were on the phone to emergency services. The accused was seen walking past the public library in Dickson and onto Antill Street, where he dropped the branch, before parking his bicycle behind a Shell service station. The witnesses then lost sight of the accused. Police later located the branch, which had been broken into two pieces, on Antill Street.

23. Police arrived at Dickson Shopping Centre a short time later. At 1:53pm, Constable Mark Gale located the accused near the Shell service station. The accused made various statements to Constable Gale, including saying “Oh, the slut, she called me every name under the sun the fucking dog”; that he “belted the cunt with a stick, that's why ... why not”; and “who gives a fuck. Man, woman, or child, I’ll belt the cunt”. The accused also denied knowing who the victim was.

24. As police were escorting the accused to the caged police car, Constable Gale asked him if he had taken any drugs that day. The accused informed police that he had taken 'ice' but denied having any alcohol. While being processed at the ACT Watch House, the accused told police “You got cameras mate, there’s footage there mate. I done the cunt, of course I done the cunt. I’ll kill the cunt”.

25. Shortly after police arrived, Constable Jessica Slater located the victim inside the pharmacy. Constable Slater saw that the victim had sustained injuries to her hand and jaw. The victim told Constable Slater that she was attacked “because [she] wouldn’t lend [the accused] money” and that the accused “straight away” attacked her head.

26. The victim was assessed by paramedics at the scene. She had swelling to her jaw and wrist, and was assessed as having a potential broken jaw and internal bleeding. The paramedics advised the victim to attend the emergency department, but she declined to do so.

27. The victim was admitted to Canberra Hospital on 28 October 2022, six days after the incident,. She was diagnosed with a left-side jaw fracture, left-side facial swelling and numbness, and swelling and bruising to her right hand. She underwent surgery on her jaw under general anaesthetic, including internal fixation and teeth extractions. A medical report provided by Dr Amanda Barry concluded that the fracture, bruising and numbness to the victim’s jaw and the bruising and abrasions to her right hand were sustained during the assault, and that one of the tooth extractions may have been related to the jaw fracture. The bruising and abrasions on the victim’s right hand were consistent with defensive injuries occurring in the context of self-defence. Dr Barry advised that the victim will have permanent scarring at the site of her surgery, and possibly chronic facial pain and numbness.

Following the accused’s arrest

28. Following the accused’s arrest, police prepared a request form seeking that the accused be assessed under s 309 of the Crimes Act, which provides for an assessment to be made to be made of whether a detainee requires immediate treatment or care because of mental impairment.

29. The form notes that the accused is known to ACT Mental Health, is clinically managed by Assertive Community Outreach Service, and is subject to a Psychiatric Treatment Order (PTO).

30. In the form, police describe the accused's behaviour during and after the present offending as “erratic and aggressive”, referring to various statements made by the accused including “man, woman or child, I'll belt the cunt”, “I'm 200 years old”, and “I live in the water”. Police also noted that the accused exhibited “more concerning" behaviour while in custody at the ACT Watch House, including blocking his sink, urinating in it, and using urine to wash his entire body. Police reported that they had 39 involvements with the accused in 2022, and were concerned that his mental health had gradually declined over the preceding 10 months.

The medical evidence

31. The Court received two expert reports in relation to the accused: a psychological report from Professor Douglas Boer, a clinical psychologist, and a forensic psychiatric report from Dr Joey Le, a psychiatrist.

32. Both experts are of the opinion that the accused has a defence of not guilty by reason of mental impairment available under s 28 of the Criminal Code 2002 (ACT). Specifically, both experts consider that the accused was suffering from a mental impairment at the time of the offences, such that he was unable to reason with a moderate degree of sense and composure about the wrongfulness of his conduct.

Report of Professor Douglas Boer

33. Professor Boer prepared a report dated 28 September 2023 at the request of the accused’s legal representatives.

34. When preparing the report, Professor Boer had available to him the Case Statement in relation to the offending; video footage of the offending; the accused’s criminal record; the police request for an assessment under s 309 of the Crimes Act; the accused’s Canberra Health medical records from 22-28 October 2022; and two previous expert medical reports regarding the accused from 2014, prepared by Dr Stephen Allnutt and Dr Anthony Barker in relation to previous offences committed in 2013.

35. Professor Boer also conducted an in-person interview with the accused and his legal representative on 16 March 2023. In this interview, the accused showed some attendance to internal stimuli (such as voices in his mind); reported ongoing auditory hallucinations both on and off medication; and discussed various beliefs, some of which appeared to be delusional.

36. Professor Boer concluded that there were "sufficient clinical grounds to indicate the presence of a mental impairment at the time of the incident”. In this respect, he noted the accused’s history of non-compliance with anti-psychotic medication followed by (sometimes violent) offending. He also observed that the current offending occurred in a similar manner to the offences committed in 2013, in respect of which Dr Allnutt and Dr Barker had each concluded that the accused was suffering from a mental impairment, namely schizophrenia.

37. Noting the accused’s statements to police following the offending, Professor Boer was of the opinion that the accused had the capacity to know the nature and quality of his conduct.

38. However, Professor Boer noted that the accused’s statements to police were indicative of an “entitlement to carry out the actions”; that the offending appeared to be prompted by command hallucinations (noting the accused made statements in the interview that, , “the devil told me to flog her with a stick”); and that the accused admitted that he “wasn’t taking (his) meds – too busy whacking up the drugs”. Consequently, Professor Boer concluded that the accused was unable to reason about the wrongfulness of his actions with a moderate degree of sense and composure. Professor Boer was also of the view that it was “likely” the accused had a “reduced capacity” to control his conduct by reason of his impairment.

39. Professor Boer also addressed the evidence that the accused was using methamphetamine at the time of the offending. He concluded that this evidence would not alter the above conclusions. He emphasised the accused’s history of non-compliance with medication followed by offending, and noted that the accused was not medicated at the time of the offending. In this respect, Professor Boer referred to a previous opinion of Dr Barker which had stated that it was “not possible to quantify” the relative contributions of the accused’s non-compliance with medication and substance use to his offending, given that the accused experiences significant symptoms of his mental impairment even when he is optimally medicated and abstaining from substance abuse.

Report of Dr Joey Le

40. Dr Le prepared a report dated 29 November 2023 at the request of the Director of Public Prosecutions.

41. Dr Le had available to him the Case Statement in relation to the offending; four witness statements; a transcript of one of the phone calls made to emergency services; video footage of the offending; statements of three attending police officers; the police request for an assessment under s 309 of the Crimes Act; the accused’s Canberra Health Services Medical records from 29 June 2022 to 28 October 2022; the two previous expert medical reports of Dr Barker and Dr Allnutt; the ACT Supreme Court’s reasons for judgment in relation to the offences committed by the accused in 2013 (R v Barker [2014] ACTSC 374), for which the accused was found not guilty by way of mental impairment; and the report of Professor Boer.

42. Dr Le provided a comprehensive review of this material, including the evidence of the offending and the medical evidence. He noted that the accused’s medical records preceding the offending were “broadly consistent with [a] longitudinal pattern of presenting with chronic psychotic symptoms including grandiose, referential and persecutory delusions, poor response to psychotropic medication, recurrent psychoactive substance use, and associated instances of violence”.

43. Dr Le noted the accused’s failure to take prescribed medication in the lead-up to the offences, along with the accused’s behaviour after the offending, including that he was “acting particularly psychotic” and “washing himself with urine”; that he reported using ice on the day prior to the offending and seeing lights which he believed was God watching him; and that he was “behaviourally disturbed” leading to the termination of a mental health review in custody.

44. Dr Le also conducted an interview with the accused via audiovisual link on 22 November 2023, in which the accused related his medical history, family history of mental illness, childhood and employment history, and significant and ongoing history of substance abuse. In that interview, the accused reported hearing voices since he was eight years of age. These voices included “the Devil tell[ing] [him] to take drugs” among other commands. In relation to the offending, the accused reported that the Devil told him to hit the victim, and that while he tried to resist, he “feared the Devil” and believed that “the Sun [would] go out on planet Earth” if he didn’t listen. He stated that “God tells me I’m the only Sun and if I die, the Sun will go out on Earth, and everybody will freeze”.

45. Dr Le diagnosed the accused as being “affected by the mental impairment of schizophrenia” at the time of the alleged offending.

46. Consistently with Professor Boer, Dr Le considered the accused’s statements to police after the offences indicated that he had the capacity to know the nature and quality of his conduct. Unlike Professor Boer (who considered that it was likely that the accused had a reduced capacity to control his conduct), Dr Le was of the view that there was no evidence the accused could not control his acts, noting that the accused had left and then returned with the tree branch, and then pursued the victim into the pharmacy.

47. However, like Professor Boer, Dr Le concluded that the accused was unable to reason with a moderate degree of sense and composure that his conduct was morally wrongful. In this respect, Dr Le observed that the “escalating” dosage of the accused’s medication in the months leading up to the offending indicated that he was experiencing “persistent psychotic symptoms”. He also took into account clinical notes recording “a range of grandiose and religiose delusional beliefs” in the months preceding the offending, and evidence of the accused’s “bizarre” behaviour after the offending.

48. Dr Le took into account the likelihood that the accused had used methamphetamine at the time of the offending, noting that video evidence showed a reduction in physical symptoms consistent with methamphetamine use. Dr Le was not able to express an opinion as to whether the methamphetamine was taken in response to command hallucinations. However, Dr Le was of the view that methamphetamine use would have “reduced the effectiveness” of the accused’s medication and “[increased] the severity of his psychotic symptoms”. Dr Le concluded that the accused’s “longstanding schizophrenia, which was poorly controlled with escalating doses of …medication in the three months before the offending” and which was worsened by “recurrent methamphetamine use”, had the result that the accused did not know that his conduct was wrong.

49. Finally, Dr Le expressly considered whether the accused may be malingering his symptoms, noting the accused’s failure to attribute his actions to the “Devil” until his interview with Professor Boer on 16 March 2023. Dr Le concluded that it was unlikely the accused was malingering. Noting that malingering is a “complex behaviour”, Dr Le stated the accused was “likely to be deficient in the necessary areas of executive function required to sustain the level of deception required to successfully malinger this behaviour over a period of time”.

Legislation

50. The term “mental impairment” is defined in s 27 of the Criminal Code as follows: 27 Definition—mental impairment (1) In this Act: mental impairment includes senility, intellectual disability, mental illness, brain damage and severe personality disorder. (2) In this section: mental illness is an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition (a reactive condition) resulting from the reaction of a healthy mind to extraordinary external stimuli. (3) However, a reactive condition may be evidence of a mental illness if it involves some abnormality and is prone to recur.

51. Section 28 of the Criminal Code provides as follows concerning mental impairment and criminal responsibility: 28 Mental impairment and criminal responsibility (1) A person is not criminally responsible for an offence if, when carrying out the conduct required for the offence, the person was suffering from a mental impairment that had the effect that— (a) the person did not know the nature and quality of the conduct; or (b) the person did not know that the conduct was wrong; or (c) the person could not control the conduct. (2) For subsection (1) (b), a person does not know that conduct is wrong if the person cannot reason with a moderate degree of sense and composure about whether the conduct, as seen by a reasonable person, is wrong. (3) The question whether a person was suffering from a mental impairment is a question of fact. (4) A person is presumed not to have been suffering from a mental impairment that had an effect mentioned in subsection (1). (5) The presumption is displaced only if it is proved on the balance of probabilities (by the prosecution or defence) that the person was suffering from a mental impairment that had an effect mentioned in subsection (1). (6) The prosecution may rely on this section only if the court gives leave. (7) If the trier of fact is satisfied that a person is not criminally responsible for an offence only because of mental impairment, it must— (a) for an offence dealt with before the Supreme Court—return or enter a special verdict that the person is not guilty of the offence because of mental impairment; or (b) for any other offence—find the person not guilty of the offence because of mental impairment.

52. Section 29 of the Criminal Code governs the relationship between mental impairment, defences, voluntariness and fault elements, as follows: 29 Mental impairment and other defences (1) A person cannot rely on a mental impairment to deny voluntariness or the existence of a fault element, but may rely on mental impairment to deny criminal responsibility. (2) If the trier of fact is satisfied that a person carried out conduct because of a delusion caused by a mental impairment, the delusion itself cannot be relied on as a defence, but the person may rely on the mental impairment to deny criminal responsibility. Determination as to liability

Overview

53. A verdict or finding of not guilty by reason of mental impairment will be “appropriate” if: (i) The Court is satisfied beyond reasonable doubt that the elements of the offence are proved, noting s 29 of the Criminal Code, which provides that a person “cannot rely on a mental impairment to deny voluntariness or the existence of a fault element, but may rely on mental impairment to deny criminal responsibility”; and (ii) The Court is satisfied on the balance of probabilities that, when carrying out the conduct required for the offence, the accused was suffering from a mental impairment that had the effect that the accused did not know the nature and quality of the conduct, or the accused did not know that the conduct was wrong, or the accused could not control the conduct (s 28 of the Criminal Code). See Kakar at [132(5)].

54. In Kakar, I concluded that it is not necessary for directions to be recorded by a judge in determining whether a verdict under s 321 of the Crimes Act is “appropriate”: see Kakar at [139] - [142]. However, as in Kakar, for abundant caution, I record that I have directed myself in accordance with the directions contained in Annexure “A”.

The elements

55. The elements for the offence of intentionally inflicting grievous bodily harm contrary to s 19(2) of the Crimes Act are: (a) The accused engaged in conduct; (b) The accused intended to engage in the conduct; (c) The conduct resulted in grievous bodily harm to another person; and (d) The accused intended to inflict grievous bodily harm on another person. See R v Weaver [2014] ACTSC 228 at [28].

56. The elements for the offence of threat to kill contrary to s 30 of the Crimes Act are: (a) The accused made a threat to kill another person; (b) The accused either: (i) Intended the other person to fear, or (ii) Was reckless as to whether the other person would fear that the threat would be carried out; (c) The threat was made without lawful excuse; and (d) The threat was made in circumstances where a reasonable person would fear that the threat would be carried out. See DPP v Makoi [2023] ACTSC 125 at [305]; R v Barker at [50]; DPP v Connors [2022] ACTSC 279 at [33].

57. The elements for the offence of common assault contrary to s 26 of the Crimes Act are: (a) The accused deliberately applied force to another person; (b) The conduct was without the consent of the other person; and (c) The application of force was without lawful excuse. See DPP v Makoi at [306]; R v Clearihan [2002] ACTSC 60 at [14].

58. I am satisfied beyond reasonable doubt of each physical element of each offence.

59. In particular, I am satisfied that the accused violently assaulted the victim with a tree branch. I am further satisfied that this assault caused a fracture of the victim’s jaw, which required the surgical insertion of permanent metalware implants. The victim has scarring at the site of her surgery. The injury is well within the definition of grievous bodily harm: AA v McDevitt [2017] ACTSC 342 at [46] – [49].

60. I am also satisfied that, as recorded in the phone calls made by witnesses to emergency services and in the eyewitness accounts, the accused made the following threats to kill: “I’ll cut your head off you cunt. I’ll cut your fucking head off” and “I’ll kill you. I’ll break your fucking legs. You disrespect me.” I am satisfied that the threat was made without lawful excuse. I am also satisfied that the victim would have reasonably believed these threats would be carried out, noting in particular, that the accused was assaulting the victim at the time these threats were made.

61. I am also satisfied beyond reasonable doubt of the elements of the transferred charge of common assault. I am satisfied that the accused assaulted the victim’s friend by punching him in the face using a closed fist.

62. When considering the fault element and voluntariness of each alleged offence, the Court must disregard the effect of the accused’s mental impairment: s 29 of the Criminal Code.

63. In the present case, there is no dispute that, apart from the accused’s mental impairment, the fault elements for each offence are established and the accused’s conduct in each instance was voluntary: see similarly Kakar at [136]. The fault elements for each offence are readily satisfied in view of the nature of the acts committed and the words spoken by the accused at the time of the offending and after the offending.

64. Indeed, it may be noted that, even if the accused’s mental impairment is taken into account (contrary to s 29 of the Criminal Code), there remains no suggestion in the evidence that the accused lacked an intention to inflict grievous bodily harm on the victim, to assault the victim’s friend or to make the threats alleged. Both experts accepted that the accused understood the nature and quality of his acts. Rather, as outlined above, both experts were of the view that accused’s mental illness impaired his ability to reason with a moderate degree of sense and composure about the wrongfulness of his conduct.

65. In these circumstances, it is not necessary for me to consider the precise relationship between mental impairment, fault elements and voluntariness: see similarly Kakar at [136]. Mental impairment

66. The evidence conclusively demonstrates that the accused suffers from schizophrenia, which is a mental impairment within the meaning of s 27 of the Criminal Code.

67. The two experts, whose evidence is unchallenged, both concluded that this mental impairment had the consequence that the accused did not know that his conduct in respect of each offence was wrong, noting that “a person does not know that conduct is wrong if the person cannot reason with a moderate degree of sense and composure about whether that conduct, as seen by a reasonable person, is wrong”. Their joint opinion is highly significant: Carter v R [2019] NSWCCA 11 at [319].

68. As I have directed myself in Annexure A, I ought not reject unanimous medical evidence unless there is evidence which can cast doubt on that medical evidence: Da-Pra v R; R v Da-Pra [2014] NSWCCA 211 at [337]. The expert evidence entirely accords with all of the evidence before the Court, noting in particular, the evidence of the accused’s long history of mental illness, and his apparent delusional thoughts at the time of, and immediately after the offending.

69. The only dispute between the experts is whether the accused had a reduced capacity to control his conduct. As noted above, Dr Le did not agree with Professor Boer’s opinion that the accused’s capacity was reduced. It is not necessary for me to resolve this dispute, as a finding that the accused did not know that his conduct was wrong is sufficient to conclude that the accused is not guilty by reason of mental impairment.

70. As outlined above, in the present case, there is evidence indicating that the accused had consumed methamphetamine prior to the assault. As I observed in Kakar at [153], a defence of not guilty by reason of mental impairment is not available where an impairment results from the reaction of a healthy mind to extraordinary external stimuli, such as methamphetamine: s 27(2) of the Criminal Code; see further R v Pahl [2017] ACTSC 68; 266 A Crim R 41 at [122] – [133].

71. Disentangling the effect of mental impairment from the effects of drug use can be difficult: see, for example, Fang v R [2018] NSWCCA 210; 97 NSWLR 876. Those complexities do not arise in this case. The accused’s mental illness is longstanding, and his impairment exists independently of any intoxication. Indeed, there is some indication in the evidence that the accused’s mental impairment sometimes causes him to consume drugs. For example, Dr Le noted in this respect that the accused stated in his interview that “he believed drug use alleviated the severity of his experience of hallucinations, and that the Devil had given him instructions to use methamphetamine on various occasions in the past”. Although it is not possible to determine whether the accused’s drug use was precipitated by auditory hallucinations on the present occasion, I am satisfied that schizophrenia was the operative cause of the accused’s offending conduct.

72. In summary, I am satisfied on the balance of probabilities that the accused’s schizophrenia had the effect that the accused did not know that his conduct was wrong in respect of each charge. It follows that he is not criminally responsible for his conduct in respect of each charge: s 28 of the Criminal Code.

Conclusion

73. For the reasons outlined above, I am satisfied that the entry of a special verdict is appropriate in respect of each charge on the indictment. I am also satisfied that a finding of not guilty by way of mental impairment is appropriate in respect of the transferred charge. I will enter those verdicts and making that finding pursuant to ss 321 and 327 of the Crimes Act.

Consequential orders

Further evidence

74. The parties tendered additional evidence for the Court’s consideration of the consequential orders to be made.

75. The prosecution tendered the accused’s criminal history. Counsel for the accused tendered a document entitled “Dhulwa Mental Health Unit Multidisciplinary Worksheet for review of Version 3 of the HCR-20” (Dhulwa Mental Health Worksheet), which had been completed by a social worker and set out the accused’s background. Both documents were admitted without objection.

76. The accused has an extensive criminal history. His criminal history in New South Wales dates back to 1985. It encompasses over 80 offences, including dishonesty offences, driving offences, public nuisance offences, and violent offences such as assault, assault occasioning actual bodily harm, and malicious wounding. The accused’s criminal history in the Australian Capital Territory dates back to 1999. He has been convicted of over 50 offences in this jurisdiction, including driving offences, dishonesty offences, property offences (such as trespass and defacing property), possession of offensive weapons, public order offences, contravention of protection orders, and violent offences including assault, assault occasioning actual bodily harm, forcible confinement, threat to kill, and intentional wounding.

77. The Dhulwa Mental Health Worksheet outlines the accused’s family and childhood background; his education and employment; his relationship history; his physical health; his mental and emotional issues; his substance use; and his history within the justice system.

78. The report records that the accused is an Indigenous man of the Muruwari people. He was raised in New South Wales. He has six siblings. The accused reported witnessing parental alcohol use, conflict and violence while growing up, and has previously disclosed being subjected to sexual abuse as a child. The accused reported that the accused’s mother’s brother had schizophrenia. The report also noted that one of the accused’s sisters appears to have bipolar affective disorder. Both of the accused’s parents and his grandmother have passed away, but he remains in contact with various other family members.

79. The report notes that the accused has had two long-term relationships, and has five children with his current estranged partner, against whom the accused has acknowledged perpetrating family violence. He has limited contact with his children.

80. The accused has reported two head injuries, one of which was sustained at about 7 – 9 years of age and the second which was sustained as an adult. He also has diabetes and Hepatitis B.

81. The accused has a long and extensive history of contact with mental health services, dating back to 1998. He reported attempting suicide while in custody in 2000.

82. The report describes the accused’s “compliance, engagement and level of insight [as] better when treated in a structured setting”, noting that “treatment in a community setting has proved problematic … primarily due to his high levels of substance use which exacerbates the symptoms of his mental illness”. His psychotic episodes are “characterised by auditory hallucinations and paranoid delusions that … have resulted in extreme aggression”, and although he experiences these symptoms even when on consistent treatment, they significantly increase as a result of the consumption of illicit substances or non-compliance with medication.

83. The reports notes that substance abuse is a “major contributing factor in the accused’s criminogenic behaviour and mental health relapses”. The report notes that the accused began using tobacco, alcohol and cannabis at an early age; that he has a chronic problem with alcohol binging; a history of chronic problems with heroin; and that he reports daily methamphetamine use since he was 25 years old. The report observes that the accused’s offending is frequently substance-related (that is, the accused commits offences in order to obtain illicit drugs or alcohol, or while intoxicated) and have recently occurred as a direct result of his mental illness.

84. The parties also provided helpful written and oral submissions addressing the consequential orders that should be made. Whether the accused should be detained in custody (ss 324 and 329 of the Crimes Act)

85. The two counts on the indictment are each “serious offences” within the meaning of s 324 of the Crimes Act, and both parties agree that I should make an order under s 324 of the Crimes Act that the accused be detained in custody for immediate review by the ACAT with respect to those charges.

86. I have considered the criteria in s 308 of the Crimes Act in determining the appropriate order to be made. I am satisfied that detention is required. As outlined above, the accused has an extensive criminal history, which includes offences of violence committed as a direct result of his mental illness. The present offending was also violent in nature. The offence of intentionally inflict grievous bodily harm was particularly serious, it was an unprovoked attack on a vulnerable member of the community.

87. The transferred charge of common assault is also a serious offence within the meaning of s 329 of the Crimes Act. In dealing with this charge, the Court exercises the powers and functions of the Magistrates Court: Aleer at [100]; s 68E(3) of the Supreme Court Act 1933 (ACT) and s 196 of the Legislation Act 2001 (ACT). Section 329 of the Crimes Act, which governs the procedure to be applied in the Magistrates Court, mirrors s 324 of the Crimes Act. In view of the accused’s history, I am satisfied that detention is also required in respect of the transferred charge.

88. Accordingly, I will make orders under ss 324 and 329 of the Crimes Act for the accused to be detained in custody for immediate review by the ACAT.

Nominated terms (s 302 of the Crimes Act)

89. As I have concluded that an order should be made that the accused should be detained in custody for immediate review by the ACAT, I must indicate whether I would have imposed a sentence of imprisonment if the accused had “not been acquitted”: s 302(1) of the Crimes Act. I must also nominate a term (the nominated term) that is the “best estimate” of the sentence that I would have considered appropriate if the accused were a person who had been found guilty of the offences: s 302(2) of the Crimes Act. The same task is also required for the transferred charge of common assault: s 304 of the Crimes Act.

90. As noted at [9] above, the nominated term is an “upper limit” on the period of time that the accused may be detained as a result of the commission of these offences. I have approached the task of assessing the nominated term bearing in mind the purpose of a nominated term, as discussed in Kakar at [182] – [196].

91. In setting the nominated terms, I have taken into account the following matters: (a) The maximum penalty for each offence, namely: (i) Imprisonment for 20 years Count 1 (CAN2022/10424) – intentionally inflict grievous bodily harm, contrary to s 19 of the Crimes Act – imprisonment for 20 years. (ii) Count 2 (CAN2022/10428) - threat to kill, contrary to s 30 of the Crimes Act – imprisonment for 10 years. (iii) Common assault (CAN2022/10423), contrary to s 26 of the Crimes Act – imprisonment for 2 years. (b) The offence of inflicting grievous bodily harm has caused permanent harm to the victim. (c) As a homeless person, the victim was a vulnerable person within the meaning of s 33(5)(b)(iii) of the Crimes (Sentencing) Act 2005 (ACT). The accused was aware of this vulnerability. (d) Each of the offences were unprovoked. (e) There was little to no planning for each offence. (f) The accused has not expressed any remorse. (g) The accused was likely affected by methamphetamine at the time of the offence: s 33(1)(p) of the Crimes (Sentencing) Act. I do not consider this to be a mitigating factor. (h) I accept that the circumstances of detention will be a greater burden on the accused, as a person with a schizophrenic disorder, than on a person without that condition: Kakar at [204(8)], citing R v Walker (No 2) [2021] ACTSC 46 at [12]. In this respect, I have taken into account the evidence of the accused’s previous suicide attempt while in custody. However, I have also taken into account the evidence that the accused’s compliance, engagement and insight is improved in a structured setting, as compared to when treated in the community.

92. Counsel for the accused noted accused had not challenged any of the physical elements of the offences charged and submitted that the nominated terms should accordingly be discounted pursuant to s 35A of the Crimes (Sentencing) Act to take account of the accused’s willingness to facilitate the administration of justice. Section 35A of the Crimes (Sentencing) Act provides for the Court to reduce a sentence where an offender is “found guilty” of the offending and, before or after the finding of guilt, the defence assisted in the administration of justice for the offence. Counsel for the prosecution properly accepted that s 35A applies where there has been a verdict of not guilty by reason of mental impairment under s 321 or s 327, as ss 302(2) and 304(2) of the Crimes Act require the court to nominate a term as if the accused had been “found guilty”: see also Kakar at [205].

93. In Higgins v The Queen [2022] ACTCA 26 at [15], the Court of Appeal observed that s 35A provides the Court with a discretion to impose a lesser penalty on an offender having regard to the degree of assistance to the administration of justice, including “in circumstances where a trial has been conducted in an efficient, expeditious and pragmatic manner by defence”.

94. I accept that the approach of the accused, in confining the issues to the question of whether he is not guilty by reason of mental impairment, has assisted the administration of justice. This approach has considerably shortened the proceedings and has avoided the need for many witnesses to give oral evidence. I have afforded a 10% discount in respect of the sentence that would have been imposed in respect of each count and the transferred charge.

95. For the reasons outlined in Kakar at [183] – [202], I have also taken into account the fact that the accused’s conduct resulted from a mental impairment. In particular, I am satisfied that the accused did not appreciate that his conduct was wrong. I am satisfied that, by reason of his impairment, the accused’s degree of moral culpability for his conduct is significantly lowered. I accept that punishment, accountability, general deterrence and specific deterrence should be significantly moderated as sentencing considerations.

96. However, I do not accept the submission made on behalf of the accused that the reduction in moral culpability should “substantially” reduce the sentence to be imposed. There is a strong need to protect the community, as is apparent from the nature and consequences of the present offending, and also from the accused’s previous offending. This need to protect the community “balance(s) out” the reduction of the accused’s moral culpability: see similarly Kakar at [207], citing Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465 at 477.

97. In circumstances where there is a high need to protect the community, the Court’s assessment of the objective seriousness of the offending assumes particular importance. Specifically, whilst it is open to the Court to place weight on the need to protect the community, the sentence to be imposed cannot exceed that which would be appropriate if the offender had not been suffering from a mental illness at the time of the offending: Kakar at [189], citing Veen (No 2) at 472.

98. In the present case, the offending was serious. As already noted, it was constituted by an unprovoked attack on a vulnerable victim. The assault occurred over a sustained period of time, and continued even after the victim retreated to the pharmacy. Although the injuries inflicted by the accused upon the victim were not life threatening, the injuries required significant surgery to her jaw and have resulted in permanent scarring to the victim’s face. I have viewed the CCTV footage and the mobile phone video footage. The victim is clearly fearful and distressed during the attack. There were also many bystanders who were exposed to the accused’s violent assault upon the victim. I also take into account the further offending, including the commission of an assault on a second victim.

99. The appellant witnessed parental violence and alcohol abuse and suffered sexual abuse as a young child. His background is such as to give rise to the considerations discussed in Bugmy v The Queen [2013] HCA 37; 249 CLR 571. However, as the appellant’s counsel accepted, in circumstances where the appellant’s moral culpability has been substantially lowered by reason of his mental impairment, such that the weight to be given to punishment, accountability and general and specific deterrence has already been significantly moderated, this background does not materially alter the determination of the nominated term to be imposed.

100. I have considered each of the comparative cases provided by the parties, including Walker (No 2); R v Barron [2020] ACTSC 281; R v Salcedo; R v Stretton (No 3) [2018] ACTSC 305; R v Chevalier [2018] ACTSC 236; R v Gardner [2022] ACTSC 36; R v Barker; R v Goonerage [2005] ACTSC 96; R v Griffiths (No 2) [2020] ACTSC 118; R v Klobucar (No 3) [2016] ACTSC 347; R v Bourne; R v Manns [2018] ACTSC 35; R v Potts [2018] ACTSC 299. I have also considered DPP v Connors (No 2) [2022] ACTSC 280; R v Burgess [2017] ACTSC 249; R v EL [2016] ACTSC 241; R v Carmody (No 3) [2017] ACTSC 60; and R v Pearson [2020] ACTSC 375. None of these authorities are directly comparable. For example, the offending in Walker (No 2), which involved the thrusting of a knife into the victim’s chest (in which a nominated term of 6 years’ imprisonment was imposed) involved life threatening injuries which are obviously more serious than the present case. However, it is also to be noted that the present offending involved two separate victims.

101. I accept the submission made on behalf of the accused that the serious assault on the victim is the “essence of the criminality” in this matter. However, as noted at above, it is also necessary to recognise that the offending involved the commission of an offence against a second victim. There is also separate criminality that is represented by the threat to kill offence. For this reason, although I will afford a substantial degree of concurrency in the nominated terms for each charge, the terms will not be entirely concurrent.

102. I will backdate the nominated terms to take into account the time spent by the accused in custody to date, namely 413 days: s 302(4) of the Crimes Act.

103. The nominated terms that I will set are: (a) Count 1 (CAN2022/10424): a starting point of imprisonment for five years, resulting in a term of 4 years and 6 months’ imprisonment after applying a discount of 10%. (b) Count 2 (CAN2022/10428): a starting point of imprisonment for one year, resulting in a term of 10 months and 24 days’ imprisonment after applying a discount of 10%. (c) Common assault (CAN2022/10423): a starting point of imprisonment for one year, resulting in a term of 10 months and 24 days’ imprisonment after applying a discount of 10%.

104. The overall nominated term will be a period of 5 years. Because a nominated term is the “upper limit” of the time that an offender will be detained as a result of offending for which they have been found not guilty by reason of mental illness, a non-parole period is not specified for a nominated term. The actual period that the accused will serve in detention will be a question for the ACAT, who will regularly review the accused’s case to determine when he should be released, taking into account the risk of the accused engaging in further violent offending: s 180 of the Mental Health Act 2015 (ACT).

Orders

105. For the above reasons, the following orders are made: (1) A special verdict of not guilty by way of mental impairment is entered under s 321(2) of the Crimes Act 1900 (ACT) in respect of the following offences: (a) Count 1 (CAN2022/10424) – intentionally inflict grievous bodily harm, contrary to s 19 of the Crimes Act 1900 (ACT); and (b) Count 2 (CAN2022/10428) – threat to kill, contrary to s 30 of the Crimes Act 1900 (ACT). (2) A finding of not guilty by way of mental impairment is entered under s 327(2) of the Crimes Act 1900 (ACT) in respect of the following transferred offence from the Magistrates Court: (a) Common assault contrary to s 26 of the Crimes Act 1900 (ACT) (CAN2022/10423). (3) I order that the accused be detained in custody for immediate review by the ACAT under s 180 of the Mental Health Act 2015 (ACT), pursuant to s 324(2)(a) and s 329 of the Crimes Act 1900 (ACT). (4) I impose the following nominated terms under ss 302 and 304 of the Crimes Act 1900 (ACT): (a) Count 1 (CAN2022/10424): imprisonment for 4 years and 6 months, to commence on 22 October 2022 and expire on 21 April 2027. (b) Count 2 (CAN2022/10428): imprisonment for 10 months and 24 days, to commence on 28 August 2026 and expire on 21 July 2027. (c) Common assault (CAN2022/10423): imprisonment for 10 months and 24 days, to commence on 28 November 2026 and expire on 21 October 2027. (5) I note the prosecution’s withdrawal of the following transferred charges: (a) Affray, contrary to s 35A of the Crimes Act 1900 (ACT) (CAN2022/10425); (b) Possess an offensive weapon in circumstances indicating intent to commit an offence involving actual or threatened violence, contrary to s 381(1) of the Crimes Act 1900 (ACT) (CAN2022/10427); and (c) (c) Assault occasioning actual bodily harm, contrary to s 24(1) of the Crimes Act 1900 (ACT) (CAN2022/10934).

I certify that the preceding one hundred and five [105] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker Associate: Date: 8 December 2023 APPENDIX A – DIRECTIONS Onus and Standard of Proof The burden of proof of the guilt of the accused is placed squarely on the prosecution. The accused is presumed to be innocent unless and until the prosecution persuades me that the accused is guilty of the elements of the offence beyond reasonable doubt. It follows that if I am left unable to decide whether the prosecution has proved its case, in relation only to the physical elements of the offence, beyond reasonable doubt, even though I might suspect that the accused committed the offence, the accused is entitled to the benefit of that doubt and I must find him not guilty simpliciter. Mental impairment To enter a verdict of not guilty by reason of mental impairment, I must be satisfied, on the balance of probabilities, that when carrying out the conduct required for the offence, the accused was suffering from a mental impairment that had the effect that— (a) he did not know the nature and quality of the conduct; or (b) he did not know that the conduct was wrong; or (c) he could not control the conduct. A “mental impairment” includes senility, intellectual disability, mental illness, brain damage and severe personality disorder. A “mental illness” is an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition (a reactive condition) resulting from the reaction of a healthy mind to extraordinary external stimuli (such as drug or alcohol use). However, a reactive condition may be evidence of a mental illness if it involves some abnormality and is prone to recur. Fact Finding The facts that I find must be based on the evidence. In this case, that includes the evidence included in the Prosecution Tender Bundle, which was tendered without objection. In assessing the evidence, I must apply my common sense. I must do so with an open and unbiased mind, hearing the evidence clinically and dispassionately and not letting emotion enter into the decision-making process. The prosecution and the accused are entitled to my verdict free of partiality, prejudice, favour or ill will. Inferences I may draw reasonable inferences from the facts that I find are established. I must examine any possible inference to ensure that it is a justifiable inference, and I must not draw an inference from the direct evidence unless it is a rational inference in all of the circumstances. Expert evidence In this case, reports of Professor Boer and Dr Le were tendered as expert evidence. The value of any expert opinion very much depends on the reliability and accuracy of the material which the expert used to reach his or her opinion. It also depends on the degree to which the expert analysed the material upon which the opinion was based, and the skill and experience brought to bear in formulating the opinion given. Experts can differ in the level and degree of their experience, training and study, yet each can still be an expert qualified to give an opinion where that opinion is based on that witness’s specialised knowledge. In the present case, the expert evidence was admitted to provide me with information and an opinion on the mental impairment of the accused in relation to the criteria set out in s 28 of the Criminal Code 2002 (ACT). These topics are within each experts’ expertise but are likely to be outside the experience and knowledge of the average lay person. The expert evidence is before me as part of all the evidence to assist me in determining whether the prosecution has proved the charges beyond reasonable doubt. I bear in mind that if, having given the matter careful consideration, I do not accept the evidence of the experts, I do not have to act upon it. This will be particularly so if the facts upon which the opinion is based do not accord with the facts as I find them to be. I am also, to a degree, entitled to take into account my common sense and my own experiences if they are relevant to the issue upon which the expert evidence relates. The accused did not give evidence The accused has not given any evidence in response to the prosecution case. However, as outlined above, the prosecution bears the onus of satisfying me beyond reasonable doubt that the accused is guilty of the physical elements of the offences charged. There is no obligation on an accused person to give or call evidence in a criminal trial, nor in a hearing under s 321 of the Crimes Act. The accused is presumed to be innocent until I am satisfied beyond reasonable doubt by the evidence led by the prosecution that he is guilty of the offence charged, including both the physical and fault elements (although noting that a person “cannot rely on a mental impairment to deny voluntariness or the existence of a fault element, but may rely on mental impairment to deny criminal responsibility”). It follows that the accused is entitled to say nothing and make the prosecution prove his guilt to the high standard required. I cannot use the accused’s decision not to give evidence in any way at all during the course of my deliberations, nor can I use it as strengthening the prosecution case or in assisting the prosecution to prove its case beyond reasonable doubt. I must not speculate about what might have been said in evidence if the accused had given evidence.